{ "id": 3718274, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK E. HOOD, Defendant-Appellant", "name_abbreviation": "People v. Hood", "decision_date": "2003-11-03", "docket_number": "No. 4\u201403\u20140178", "first_page": "1245", "last_page": "1260", "citations": [ { "type": "official", "cite": "343 Ill. App. 3d 1245" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "757 N.E.2d 887", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "894" }, { "page": "894" } ], "opinion_index": 0 }, { "cite": "197 Ill. 2d 358", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259135 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "369" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0358-01" ] }, { "cite": "540 N.E.2d 1106", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "1109" } ], "opinion_index": 0 }, { "cite": "184 Ill. App. 3d 712", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2640604 ], "year": 1989, "pin_cites": [ { "page": "717" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0712-01" ] }, { "cite": "747 N.E.2d 339", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "195 Ill. 2d 336", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725359 ], "year": 2001, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0336-01" ] }, { "cite": "752 N.E.2d 410", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "425" } ], "opinion_index": 0 }, { "cite": "196 Ill. 2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351233 ], "year": 2001, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0236-01" ] }, { "cite": "780 N.E.2d 669", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "685" } ], "opinion_index": 0 }, { "cite": "202 Ill. 2d 189", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442057 ], "year": 2002, "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0189-01" ] }, { "cite": "593 N.E.2d 805", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "815" } ], "opinion_index": 0 }, { "cite": "229 Ill. App. 3d 202", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5217038 ], "year": 1992, "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0202-01" ] }, { "cite": "636 N.E.2d 902", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "906" } ], "opinion_index": 0 }, { "cite": "264 Ill. App. 3d 310", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680611 ], "year": 1994, "pin_cites": [ { "page": "315-16" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/264/0310-01" ] }, { "cite": "611 N.E.2d 1173", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "1181" }, { "page": "1182" } ], "opinion_index": 0 }, { "cite": "242 Ill. App. 3d 1056", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5121093 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "1067" }, { "page": "1068" }, { "page": "1069" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/1056-01" ] }, { "cite": "434 N.E.2d 13", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 129", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5471389 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0129-01" ] }, { "cite": "438 N.E.2d 565", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "107 Ill. App. 3d 1019", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3025257 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/1019-01" ] }, { "cite": "474 N.E.2d 466", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 128", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3436205 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0128-01" ] }, { "cite": "492 N.E.2d 248", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 844", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3449873 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0844-01" ] }, { "cite": "507 N.E.2d 954", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "155 Ill. App. 3d 29", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3466042 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/155/0029-01" ] }, { "cite": "544 N.E.2d 978", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "188 Ill. App. 3d 458", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2690637 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0458-01" ] }, { "cite": "612 N.E.2d 1011", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "1032-33" } ], "opinion_index": 0 }, { "cite": "244 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5101326 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "993" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0966-01" ] }, { "cite": "623 N.E.2d 352", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "357" } ], "opinion_index": 0 }, { "cite": "157 Ill. 2d 68", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778578 ], "year": 1993, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0068-01" ] }, { "cite": "718 N.E.2d 58", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "73" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "187 Ill. 2d 36", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131030 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "63" }, { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0036-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "1130" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "706 N.E.2d 49", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "55" } ], "opinion_index": 0 }, { "cite": "302 Ill. App. 3d 722", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352935 ], "year": 1999, "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0722-01" ] }, { "cite": "635 N.E.2d 653", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "664" } ], "opinion_index": 1 }, { "cite": "262 Ill. App. 3d 808", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850841 ], "year": 1994, "pin_cites": [ { "page": "823-24" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/262/0808-01" ] }, { "cite": "511 N.E.2d 661", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "676" }, { "page": "675-76" } ], "opinion_index": 1 }, { "cite": "158 Ill. App. 3d 614", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3579267 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "634" }, { "page": "634-35" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/158/0614-01" ] }, { "cite": "710 N.E.2d 72", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "77" } ], "opinion_index": 1 }, { "cite": "304 Ill. App. 3d 791", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564645 ], "year": 1999, "pin_cites": [ { "page": "797" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/304/0791-01" ] }, { "cite": "693 N.E.2d 897", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "905", "parenthetical": "only natural for blood-alcohol level to diminish after several hours" } ], "opinion_index": 1 }, { "cite": "295 Ill. App. 3d 1050", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45763 ], "year": 1998, "pin_cites": [ { "page": "1062", "parenthetical": "only natural for blood-alcohol level to diminish after several hours" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/295/1050-01" ] }, { "cite": "636 N.E.2d 902", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "906", "parenthetical": "\"defendant's reliance on Supreme Court Rule 220 is misplaced\"" } ], "opinion_index": 1 }, { "cite": "264 Ill. App. 3d 310", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680611 ], "year": 1994, "pin_cites": [ { "page": "316" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/264/0310-01" ] }, { "cite": "434 N.E.2d 13", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "page": "15", "parenthetical": "doctor and nurse allowed to testify in reckless homicide case despite argument that listing of names was insufficient to put defendant on notice they would be asked their opinion on issue of intoxication" } ], "opinion_index": 1 }, { "cite": "105 Ill. App. 3d 129", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5471389 ], "year": 1982, "pin_cites": [ { "page": "132", "parenthetical": "doctor and nurse allowed to testify in reckless homicide case despite argument that listing of names was insufficient to put defendant on notice they would be asked their opinion on issue of intoxication" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/105/0129-01" ] } ], "analysis": { "cardinality": 1312, "char_count": 35104, "ocr_confidence": 0.727, "pagerank": { "raw": 5.17808831175491e-08, "percentile": 0.32532572362326917 }, "sha256": "774ca7e0bc357637410c7f7b550a0cbab6f154c4562230df4f9462fc10a1e1a2", "simhash": "1:3f6c258c7fef4c53", "word_count": 5843 }, "last_updated": "2023-07-14T15:02:30.760533+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "KNECHT, J., concurs." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK E. HOOD, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE TURNER\ndelivered the opinion of the court:\nIn December 2000, the State charged defendant, Frederick E. Hood, with reckless homicide, aggravated driving under the influence of alcohol, illegal transportation of alcohol, and failure to yield to a pedestrian in the crosswalk, all in connection with a motor vehicle accident that resulted in a pedestrian\u2019s death. In May 2002, a jury found defendant guilty on all four counts. In June 2002, defendant filed a posttrial motion, which the trial court denied. In January 2003, the trial court sentenced defendant to three years in prison on the reckless homicide count.\nOn appeal, defendant argues (1) the trial court erred in allowing certain expert and rebuttal testimony, (2) he was denied a fair trial because of the prosecutor\u2019s alleged improper statements during closing arguments, and (3) the State failed to present evidence to sustain defendant\u2019s convictions for failure to yield to a pedestrian in a crosswalk and illegal transportation of alcohol. We affirm in part, reverse in part, and remand for a new trial.\nI. BACKGROUND\nOn December 1, 2000, the State charged defendant by information with the offense of aggravated driving under the influence of alcohol (625 ILCS 5/11 \u2014 501(d)(1)(C) (West 2000)), alleging that on November 28, 2000, he drove a 1986 Dodge Ram while under the influence of alcohol and was involved in a motor vehicle accident resulting in great bodily harm, permanent disability, or disfigurement to another and the proximate cause of those injuries.\nOn December 27, 2000, the State charged defendant by information with the offense of reckless homicide (720 ILCS 5/9 \u2014 3(a) (West 2000)), alleging he, while under the influence of alcohol to a degree that rendered him incapable of safely driving and while acting in a reckless manner, performed acts likely to cause death or great bodily harm to an individual, in that he operated his vehicle, and after disobeying a stop sign, he struck a pedestrian in the crosswalk, causing the death of Marie L. Schwab. The State also charged defendant with the traffic offenses of illegal transportation of alcohol (625 ILCS 5/11 \u2014 502(a) (West 2002)) and failure to yield to a pedestrian in the crosswalk (625 ILCS 5/11 \u2014 1002(a) (West 2002)). Defendant pleaded not guilty and requested a jury trial.\nIn May 2002, defendant\u2019s jury trial commenced. David Smith testified he was driving with his girlfriend to pick up his son from school on November 28, 2000. He testified the intersection of Main and Poplar in Mount Olive is a four-way stop. As he was stopped at the stop sign, he noticed a brown, full-size van approach ing the intersection \u201cat a pretty good rate of speed.\u201d After the van\u2019s driver \u201cmade the corner,\u201d Smith saw a woman \u201cabout halfway through the crosswalk.\u201d She held her left hand up as to motion to the van\u2019s driver to stop, but the van struck the woman as she was \u201cin the crosswalk.\u201d Smith observed the woman \u201cgo through the air and land on the pavement,\u201d and he proceeded to a nearby police station to summon help. On his way, he noticed the van\u2019s driver, identified as defendant, step out of the van \u201cand kind of stumble and lean against the door.\u201d\nTricia Marietta, Smith\u2019s girlfriend at the time of the incident, testified the weather was overcast on November 28, 2000. She stated Smith had stopped at the intersection when she saw a vehicle that was not \u201cslowing down\u201d and hit the woman who was walking.\nRyan Gorman, a deputy with the Macoupin County sheriffs department, testified he responded to the scene of the accident on November 28, 2000. Gorman observed defendant leaning up against the side of his van holding a child. Upon conversing with defendant, Gorman noticed his eyes were \u201cbloodshot and glossy,\u201d and his breath had a \u201cstrong odor of alcoholic beverage.\u201d Further, Gorman found defendant\u2019s \u201cspeech was mumbled together.\u201d Gorman stated defendant told him he was coming from a tavern in Mount Olive when he hit the victim. After defendant was arrested, Gorman conducted an inventory search of his van and found \u201ca cooler that contained beer cans in it, some full, some empty.\u201d Gorman stated the beer was cold, and the cooler contained several open and full cans of beer. Upon leaving an officer\u2019s squad car to enter the hospital for a blood and urine draw, defendant \u201cwas staggering and uneasy as he walked.\u201d Based on his experience, Gorman believed defendant was intoxicated. From the time of the accident to defendant\u2019s urine test, Gorman stated he appeared \u201cto be sobering up some.\u201d\nDr. Travis Hindman, a forensic pathologist, testified he performed an autopsy on Marie Schwab on December 19, 2000. Defense counsel stipulated to his credentials, and the trial court recognized him as an expert. Based on his expert opinion, Dr. Hindman found the cause of death to be brain trauma due to the injuries sustained in a pedestrian-vehicular collision. Dr. Hindman stated he has testified as a witness in the area of how the body metabolizes alcohol after it has been ingested. Defense counsel objected to Dr. Hindman testifying to any examination of blood samples as he was only disclosed as performing the autopsy. The trial court sustained the objection.\nJohn Tandy, a patrolman with the Mount Olive police department at the time of the accident, testified that upon asking defendant what happened, he told the officer he stopped at the stop sign, turned left, heard a \u201cthump or a thud,\u201d and stopped. Tandy noticed a strong odor of beer from defendant\u2019s breath, and his eyes were \u201cglassy and bloodshot.\u201d Defendant leaned up against the door of the van \u201cthe whole time.\u201d Tandy asked defendant if he would be willing to undergo several field-sobriety tests, including the one-legged stand, the nystagmus test, and the turn-and-walk test, but he refused. Defendant told Tandy he had two beers at a local tavern. Tandy also testified to the cooler of beer found in defendant\u2019s van. He recalled seven unopened cans and five empty cans, with one open can partially full of a substance that smelled like beer. Tandy transported defendant to the hospital and described him as \u201cuneasy on his feet,\u201d \u201cstumbling,\u201d and \u201cstaggering a little bit.\u201d Tandy stated they waited an hour to an hour and a half before defendant\u2019s blood and urine were collected. During that time, defendant stood leaning up against the wall, but he \u201csobered up quite a bit.\u201d\nThe parties stipulated that defendant\u2019s blood test indicated a blood-alcohol content of 0.077. The trial court denied defendant\u2019s motion for directed verdict.\nThe defense called Bob Bonacorsi as its first witness. He testified he was driving west through Mount Olive on the date of the incident. He stated the sun was \u201cso bad\u201d that he had to roll down his window to look out \u201cbecause [he] couldn\u2019t see anything.\u201d Bonacorsi testified this occurred in close proximity to the accident scene.\nDanielle Shelton testified she saw defendant on the day of the accident between 1:30 p.m. and 2 p.m. as she was bartending at JC\u2019s Tavern. Defendant came in the tavern with \u201chis little boy,\u201d stayed for 45 minutes, and had one beer. Shelton stated defendant did not appear to be under the influence of alcohol when he came in or when he left.\nMary Joanne Cartwright, owner of JC\u2019s Tavern, testified defendant came in the tavern on the date of the accident with his infant son. He did not appear to be under the influence of alcohol to her. She stated he had one beer.\nDenise Vojas, a part-time employee at Tillie\u2019s Tavern in Mount Olive, testified defendant entered the bar on the date of the accident at around 1:30 p.m. While in the bar, defendant \u201chad a bottle of Busch,\u201d ordered another, \u201cdrank half of it,\u201d and left after 25 to 30 minutes. According to Vojas, defendant did not appear to be under the influence of alcohol before or after he left.\nHervana Hood, defendant\u2019s mother, testified she was called to the scene of the accident to pick up defendant\u2019s son. She saw defendant standing \u201cstraight\u201d at the side of his van holding his son. She stated defendant \u201cwas really upset.\u201d He did not appear to have trouble standing and was not slurring his words.\nDefendant testified he kept a cooler in his van because he lived in a dry county in Arkansas. He stated the cooler contained some full and empty cans, was behind the driver\u2019s seat, and had been there for \u201ca couple of days.\u201d Defendant testified he had three knee surgeries. He stated he arrived in Mount Olive from Arkansas at \u201cabout 1:30, 2 o\u2019clock.\u201d He stopped at JC\u2019s Tavern to find \u201chired guns\u201d to help him move some property. He had one beer and stayed for about 30 minutes. He left and went to Tillie\u2019s and \u201cordered a beer so [he] wouldn\u2019t seem rude.\u201d He also drank part of a second beer.\nDefendant testified he approached the intersection at Poplar and Main in Mount Olive, and his son threw his bottle causing defendant to look back at him after stopping at a stop sign. Defendant then started to make a turn, but the \u201csun was in [his] eyes\u201d and he \u201cheard a thunk and immediately stopped.\u201d He did not see Schwab \u201cin the crossroad.\u201d He exited his vehicle, yelled for help, and then attempted to comfort his crying son. Officer Tandy later told him he was under arrest for drunk driving, and defendant asked to take a field-sobriety test, but Tandy refused. Officer Tandy later took him back to Mount Olive, where defendant went to JC\u2019s Tavern to have a soda and find a ride home.\nOn cross-examination, defendant stated the cooler still had ice in it because he \u201cput a blanket over it.\u201d The empty beer cans were in the cooler because he did not want to litter and his 13-year-old son recycles the cans. He testified he never refused to take any breath or blood tests.\nFollowing defendant\u2019s testimony, defense counsel made a motion in limine to exclude any rebuttal testimony from Dr. Hindman concerning blood-alcohol content. The trial court denied the motion.\nThe State called Dr. Hindman in rebuttal. The trial court found Dr. Hindman to be qualified as an expert toxicologist. Then, the State recalled Officer Tandy, who testified defendant was 5 feet 7 inches tall and weighed 160 pounds on November 28, 2000, based on his driver\u2019s license information. The State recalled Dr. Hindman to testify to a hypothetical as to his opinion on the blood-alcohol level for an individual, 5 feet 7 inches tall, 160 pounds, having 2.5 to 2.75 12-ounce beers at around 2:30 p.m. and blood tested at 5:40 p.m. Dr. Hindman opined the blood-alcohol level of that individual at that time would be 0.0255. If a hypothetical person had a 0.077 blood-alcohol level at 5:40 p.m., based on the rate of reduction, the person\u2019s level at 3 p.m. would have been 0.114.\nOfficer Gorman testified in rebuttal that defendant refused to submit to any field-sobriety tests. Following closing arguments, the jury found defendant guilty of reckless homicide based upon driving under the influence of alcohol, aggravated driving under the influence of alcohol involving a personal injury motor vehicle accident, illegal transportation of alcohol in a motor vehicle, and failure to yield to a pedestrian in a crosswalk.\nIn June 2002, defendant filed a posttrial motion, arguing, inter alia, the trial court erred in allowing Dr. Hindman to testify as a rebuttal witness. In November 2002, the trial court denied the motion. In January 2003, the trial court sentenced defendant to three years in prison on the reckless homicide count. The court found the offense of aggravated driving under the influence was a lesser-included offense of reckless homicide and vacated the jury verdict on the former offense. This appeal followed.\nII. ANALYSIS\nA. Dr. Hindman\u2019s Testimony\nDefendant argues the trial court erred in allowing Dr. Hindman to testify to reverse extrapolation in his rebuttal testimony. We agree.\nIn its February 2001 answer to discovery, the State listed Dr. Hind-man as the Sangamon County coroner and as a possible witness, along with attaching the forensic report. During defendant\u2019s jury trial, defense counsel objected to Dr. Hindman\u2019s proposed testimony regarding reverse extrapolation of alcohol since he was disclosed as the one who conducted the autopsy of the victim.* The trial court sustained the objection, finding the State could not elicit testimony from Dr. Hind-man concerning reverse extrapolation in its case in chief because it failed to apprise defense counsel of the proposed testimony in pretrial discovery. After defendant testified, the State noted its intention to call Dr. Hindman as a rebuttal witness. Defense counsel made a motion in limine to exclude Dr. Hindman\u2019s rebuttal testimony, which the trial court denied. In rebuttal, the trial court found Dr. Hindman qualified as an expert in toxicology.\nDefendant\u2019s argument on appeal centers on whether (1) Dr. Hind-man had the qualifications to testify to reverse extrapolation, (2) the State\u2019s failure to disclose Dr. Hindman as an expert in reverse extrapolation was error, (3) Dr. Hindman\u2019s testimony lacked a proper foundation, and (4) the trial court erred in allowing Dr. Hindman\u2019s rebuttal testimony.\n1. Expert Qualifications\nDefendant argues the State failed to establish Dr. Hindman as an expert on reverse extrapolation. We find defendant has forfeited this argument on appeal.\n\u201cTo sustain an argument for appeal, both an objection at trial and a written posttrial motion raising the objection are required.\u201d People v. Reynolds, 302 Ill. App. 3d 722, 730, 706 N.E.2d 49, 55 (1999), citing People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988). Here, defendant failed to raise the issue of Dr. Hindman\u2019s qualifications in his posttrial motion, and defense counsel did not argue this issue at the posttrial hearing. Thus, defendant has forfeited this argument on appeal.\n2. Failure To Disclose\nDefendant argues the State failed to disclose Dr. Hindman as an expert in reverse extrapolation of alcohol, causing him prejudice. We agree.\n\u201c[T]he purpose of the discovery rules is to protect the accused against surprise, unfairness, and inadequate preparation.\u201d People v. Heard, 187 Ill. 2d 36, 63, 718 N.E.2d 58, 73 (1999). Although compliance with discovery rules is mandatory, the State\u2019s failure to comply with discovery rules does not require reversal of a defendant\u2019s conviction absent a showing of surprise or unfair prejudice. People v. Robinson, 157 Ill. 2d 68, 78, 623 N.E.2d 352, 357 (1993). The defendant has the burden of showing surprise or prejudice. Heard, 187 Ill. 2d at 63, 718 N.E.2d at 74.\nSupreme Court Rule 412(a)(i) (188 Ill. 2d R. 412(a)(i)) requires the State, as part of pretrial discovery and upon the defendant\u2019s request, to supply the defendant with the names of persons whom the State intends to call as witnesses. Supreme Court Rule 412(a)(iv) (188 Ill. 2d R. 412(a)(iv)) requires the State to disclose \u201cany reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons, and a statement of qualifications of the expert.\u201d\nIn this case, the State listed Dr. Hindman as a possible witness in its pretrial discovery and attached the forensic report. Defense counsel could thus reasonably conclude Dr. Hindman would testify to the autopsy he performed on the victim. With nothing else, defense counsel could not reasonably conclude prior to trial that Dr. Hindman would offer his expertise on reverse extrapolation of alcohol. Had defense counsel been aware of such testimony, he could have attempted to call his own experts to refute Dr. Hindman\u2019s conclusions.\nWe recognize discovery in civil cases is conducted much differently than discovery in criminal cases. For example, Supreme Court Rule 213 (177 Ill. 2d R. 213(g)), governing civil cases, requires the parties to identify the subject on which the expert witnesses will testify as well as the opinions the experts will offer. This requirement is noticeably lacking in Rule 412. Nonetheless, we note that Rule 412(a) (iv) requires the State to provide statements of experts regarding \u201cscientific tests, experiments, or comparisons\u201d made by the experts. 188 Ill. 2d R. 412(a)(iv). Here, the doctor used extrapolation to compare a hypothetical person\u2019s blood-alcohol concentration to the extrapolated blood-alcohol concentration of defendant if defendant had consumed 23A beers as he testified. Thus, the State arguably failed to disclose comparisons made by its expert under Rule 412(a)(iv). Moreover, even if the calculations of the doctor were not technically comparisons under the rule, it seems clear his calculations regarding reverse extrapolation should have been disclosed to defendant under the spirit of the rule. Finally, although these calculations were apparently not reduced to writing prior to the doctor\u2019s testimony, we believe the State was aware of the calculations before questions were posed to the doctor.\nAs noted in People v. Sims, 244 Ill. App. 3d 966, 612 N.E.2d 1011 (1993), \u201c[t]here are numerous criminal cases whereby experts were allowed to testify even when their existence was not fully disclosed or the gist of their testimony was not fully revealed to defense counsel.\u201d Sims, 244 Ill. App. 3d at 993, 612 N.E.2d at 1032-33, citing People v. Carr, 188 Ill. App. 3d 458, 544 N.E.2d 978 (1989); People v. Fleming, 155 Ill. App. 3d 29, 507 N.E.2d 954 (1987); People v. Scheidt, 142 Ill. App. 3d 844, 492 N.E.2d 248 (1986); People v. Jackson, 131 Ill. App. 3d 128, 474 N.E.2d 466 (1985); People v. Taylor, 107 Ill. App. 3d 1019, 438 N.E.2d 565 (1982); People v. Davis, 105 Ill. App. 3d 129, 434 N.E.2d 13 (1982). Although several of these cases questioned whether any discovery violation had occurred, none based its decision on that issue alone. Instead, all of the courts ultimately hinged their decisions on whether the defendant had been unfairly surprised and prejudiced.\nHere, the State indicated it did not know Dr. Hindman was qualified to testify to reverse extrapolation until the afternoon of the trial\u2019s first day. The trial court noted that if it was a surprise to the State, it was \u201ca bigger surprise to the defendant.\u201d Moreover, the State had evidence in the toxicology reports that defendant\u2019s blood-alcohol level was 0.077 at 5:40 p.m. The State should have foreseen expert testimony would be needed if it desired to present evidence of defendant\u2019s blood-alcohol level at the time of the accident. This should have been presented in the State\u2019s case in chief, but as stated, the trial court prohibited the State\u2019s belated attempt to present the evidence because of prejudice to defendant due to lack of notice. However, admitting the doctor\u2019s testimony as rebuttal evidence did not lessen the prejudice to defendant, and we are not persuaded this prejudice may be ignored merely because the evidence was used as \u201crebuttal.\u201d\n\u201cThe duty to disclose rebuttal witnesses, as with all witnesses, arises when the State has formed the intent to call such a witness.\u201d People v. Bock, 242 Ill. App. 3d 1056, 1067, 611 N.E.2d 1173, 1181 (1993).\n\u201cThe law regarding disclosure of rebuttal witnesses in criminal cases is well settled. Until the prosecutor forms the intent to call the witness, disclosure is not required. [Citation.] This court has held that \u2018[b]ecause the State may not know if a witness will be called in rebuttal until the defense testimony is heard, the State need not inform the defense of its intention to call a rebuttal witness until that intention is formed.\u2019 [Citation.] When the State fails to make timely disclosure of a rebuttal witness, the trial court is not required to exclude the rebuttal witness\u2019 testimony. (People v. Bock (1993), 242 Ill. App. 3d 1056, 1068, 611 N.E.2d 1173[, 1181].) In Bock, defendant objected to the State\u2019s decision to call a rebuttal witness who was identified on the morning of the trial. Defendant alleged that, because the witness was disclosed on the day of the trial, he had not had an opportunity to do any investigation. However, defendant did not request a continuance and the court allowed the witness to testify. On appeal, the appellate court held that the defendant was not prejudiced by the testimony of the rebuttal witness. (Bock, 242 Ill. App. 3d at 1069[, 611 N.E.2d at 1182].) The court reasoned that defendant had an opportunity to interview the rebuttal witness, failed to request a continuance to conduct further investigation and cross-examined the witness during trial.\u201d People v. Weber, 264 Ill. App. 3d 310, 315-16, 636 N.E.2d 902, 906 (1994).\nHere, after the trial court excluded Dr. Hindman\u2019s testimony in the State\u2019s case in chief, the State could then have indicated its intention to call him on rebuttal if defendant decided to testify. Instead of informing defendant then, the State waited until after defendant testified and then sought to offer Dr. Hindman\u2019s testimony on rebuttal. While we agree the State cannot know with certainty the substance of a given defendant\u2019s testimony, here, we note the State in its case in chief had already elicited Tandy\u2019s testimony that defendant claimed he had consumed only two beers.\nMore troublesome is the nature of this \u201crebuttal\u201d testimony. The testimony was not presented to counter a defense witness\u2019s testimony on defendant\u2019s blood-alcohol concentration. Instead, the State argues the testimony was offered to rebut defendant\u2019s testimony that he had consumed 23U beers. However, the doctor\u2019s evidence went beyond rebutting defendant\u2019s claim and beyond rebutting the testimony of defendant\u2019s lay witnesses, who opined defendant was not under the influence of alcohol. The doctor\u2019s testimony allowed the State to request and be given the third paragraph of Illinois Pattern Jury Instructions, Criminal, No. 23.30, which instructs the jury in pertinent part that \u201c[i]f you find beyond a reasonable doubt that at the time the defendant drove a vehicle that the amount of alcohol concentration in the defendant\u2019s blood or breath was 0.08 or more, you may presume that the defendant was under the influence of alcohol.\u201d Illinois Pattern Jury Instructions, Criminal, No. 23.30 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 23.30)). Thus, the doctor\u2019s testimony, if believed, did more than simply rebut defendant\u2019s evidence. It introduced into the case a presumption against defendant and in favor of the State.\nThe trial court abuses its discretion when it fails to eliminate the prejudice against defendant by a discovery violation. People v. Hood, 229 Ill. App. 3d 202, 216, 593 N.E.2d 805, 815 (1992). Because of the prejudice to defendant here and given the unique circumstances of this case, we find the trial court abused its discretion in allowing Dr. Hindman\u2019s testimony on rebuttal. Accordingly, defendant\u2019s conviction for reckless homicide must be reversed and a new trial ordered. Because of our decision to reverse defendant\u2019s reckless homicide conviction, we need not address his remaining issues on Dr. Hind-man\u2019s rebuttal testimony and the State\u2019s closing arguments.\nB. Guilt Beyond a Reasonable Doubt\nDefendant argues the State\u2019s evidence was insufficient to sustain the convictions for failure to yield to a pedestrian in a crosswalk and for illegal transportation of alcohol. We disagree.\nWhen reviewing a challenge to the sufficiency of the evidence, in a criminal case, the relevant inquiry is whether, when viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Pollock, 202 Ill. 2d 189, 217, 780 N.E.2d 669, 685 (2002). The trier of fact has the responsibility to determine the credibility of witnesses and the weight given to their testimony, to resolve conflicts in the evidence, and to draw reasonable inferences from that evidence. People v. Ortiz, 196 Ill. 2d 236, 259, 752 N.E.2d 410, 425 (2001). A court of review will not overturn the verdict of the fact finder \u201cunless the proof is so improbable or unsatisfactory that there exists a reasonable doubt of the defendant\u2019s guilt.\u201d People v. Maggette, 195 Ill. 2d 336, 353, 747 N.E.2d 339, 349 (2001).\n1. Failure To Yield to a Pedestrian in a Crosswalk\nSection 11 \u2014 1002(a) of the Illinois Vehicle Code provides as follows:\n\u201cWhen traffic control signals are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.\u201d 625 ILCS 5/11 \u2014 1002(a) (West 2002).\nAt trial, David Smith testified he witnessed defendant\u2019s van strike Schwab while she was in the crosswalk. He stated defendant\u2019s van approached the intersection \u201cat a pretty good rate of speed,\u201d and the pedestrian in the crosswalk held her hand up as if to motion for the driver to stop his vehicle. The testimony presented clearly indicated it was defendant\u2019s van that struck Schwab. Smith stated the impact threw Schwab \u201cabout five feet,\u201d and defendant\u2019s van was not in the intersection when it came to a stop. Based on the testimony and evidence presented, a reasonable jury could find Schwab was in the crosswalk when she was struck by defendant\u2019s van.\n2. Illegal Transportation of Alcohol\nSection 11 \u2014 502(a) of the Illinois Vehicle Code provides, in part, as follows:\n\u201c[N]o driver may transport, carry, possess!,] or have any alcoholic liquor within the passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken.\u201d 625 ILCS 5/11 \u2014 502(a) (West 2002).\nAt trial, Deputy Gorman testified he found a cooler in defendant\u2019s van containing full and empty beer cans. Tandy also testified to the cooler containing unopened and empty beer cans, along with one can partially full of a substance that smelled like beer. He stated one can of Busch beer was standing upright in the cooler and was partially full. He had occasion in the past to smell beer, and he stated the remaining liquid in the can \u201csmelled like beer.\u201d The State\u2019s failure to introduce testimony concerning a chemical analysis of the liquid in the beer cans does not preclude a finding of guilt. People v. Angell, 184 Ill. App. 3d 712, 717, 540 N.E.2d 1106, 1109 (1989). Defendant does not argue Tandy was not competent to testify to his observations and opinion that the partially full can in the cooler contained beer at the time of the accident. Defendant admitted having full and empty beer cans in the cooler, but denied one can was partially full. The jury had the responsibility to resolve these conflicts in the evidence, and sufficient evidence was presented to establish defendant\u2019s guilt beyond a reasonable doubt.\nIII. CONCLUSION\nFor the reasons stated, we affirm in part, reverse in part, and remand for a new trial. As we are remanding this cause for a new trial, we find the record contains sufficient evidence for the jury to have found defendant guilty of reckless homicide and aggravated driving under the influence of alcohol beyond a reasonable doubt. Thus, no double jeopardy violation will occur upon retrial. In re R.A.B., 197 Ill. 2d 358, 369, 757 N.E.2d 887, 894 (2001). This conclusion does not imply a determination of defendant\u2019s guilt or innocence that would be binding on retrial. R.A.B., 197 Ill. 2d at 369, 757 N.E.2d at 894.\nAffirmed in part, reversed in part, and remanded for a new trial.\nKNECHT, J., concurs.", "type": "majority", "author": "JUSTICE TURNER" }, { "text": "JUSTICE COOK,\ndissenting:\nI respectfully dissent and would affirm the decision of the trial court. I disagree with the trial court\u2019s exclusion of Dr. Hindman\u2019s testimony regarding blood-alcohol levels during the State\u2019s case in chief, but I agree with the court that the testimony should at least have been admitted during rebuttal.\nThe evidence indicated defendant was drinking between 1:30 and 2 p.m. on the day of the accident. The accident occurred shortly before 3 p.m. Defendant\u2019s blood-alcohol level was 0.077 at 5:40 p.m. Dr. Hind-man testified that defendant\u2019s blood-alcohol level at the time of the accident was probably 0.114. It is common knowledge that immediately after the consumption of alcohol, the body goes through a period of absorption, or rising blood-alcohol level, and then through a process of elimination, or falling blood-alcohol level. People v. Beck, 295 Ill. App. 3d 1050, 1062, 693 N.E.2d 897, 905 (1998) (only natural for blood-alcohol level to diminish after several hours). Experts in other cases have testified that alcohol is eliminated from the body at an average rate of 0.015 to 0.02 per hour in 85% of males. See People v. Latto, 304 Ill. App. 3d 791, 797, 710 N.E.2d 72, 77 (1999). Defendant\u2019s blood-alcohol level at 5:40 p.m. was only 0.003 less than 0.08.\nThe basic rule of discovery in criminal cases is that the State, upon written motion, is required to disclose the names and addresses of witnesses. 188 Ill. 2d R. 412(a)(i). The State is not required to set out what the witnesses will testify to, although the State is required to disclose any written or recorded statements, or \u201csubstantially verbatim reports\u201d of oral statements, which of course may be used for impeachment. 188 Ill. 2d R. 412(a)(i); cf. 188 Ill. 2d R. 412(a)(ii) (where the statement is made by the accused, the prosecution must disclose \u201cthe substance of any oral statement\u201d). Absent a showing of an intentional tactic to prevent disclosure, there is no requirement that oral statements in the State\u2019s possession or control be reduced to writing. People v. Lasley, 158 Ill. App. 3d 614, 634, 511 N.E.2d 661, 676 (1987); People v. Williams, 262 Ill. App. 3d 808, 823-24, 635 N.E.2d 653, 664 (1994). The question before the court is whether the existing notes in the State\u2019s file constitute \u201csubstantially verbatim reports,\u201d not whether defense counsel would be surprised or whether it would be a good idea for the State to prepare a more thorough report. 188 Ill. 2d R. 412(a)(i). Defense counsel may avoid surprise by interviewing the witnesses who have been disclosed. Lasley, 158 Ill. App. 3d at 634-35, 511 N.E.2d at 675-76.\nRule 412 requires little more in the case of experts, only the disclosure of their \u201creports or statements,\u201d including results of examinations or tests, and disclosure of the expert\u2019s qualifications. 188 Ill. 2d R. 412(a)(iv). \u201cStatements\u201d apparently means formal statements similar to reports, or examination and test results, and not everything that is said by an expert prior to his testifying. \u201cRule 412 does not require that every conversation with witnesses during the course of investigation be reduced to writing.\u201d People v. Davis, 105 Ill. App. 3d 129, 132, 434 N.E.2d 13, 15 (1982) (doctor and nurse allowed to testify in reckless homicide case despite argument that listing of names was insufficient to put defendant on notice they would be asked their opinion on issue of intoxication).\nThe majority argues that the prosecution confused the defense when it attached Dr. Hindman\u2019s autopsy report indicating the cause of death and did not alert defense counsel to Dr. Hindman\u2019s expertise in reverse extrapolation. \u201cHad defense counsel been aware of such testimony, he could have attempted to call his own experts to refute Dr. Hindman\u2019s conclusions.\u201d 343 Ill. App. 3d at 1253. Really? Defense counsel could not anticipate the argument that a blood-alcohol level of 0.077 at 5:40 p.m. might indicate a blood-alcohol level of more than 0.08 three hours earlier? In the unlikely event any expert would ever dispute that defendant earlier had a blood-alcohol level greater than 0.077, defense counsel surely would have called him, whether Dr. Hindman testified or not.\nAs the majority points out, civil discovery rules require the parties to identify the subject on which the expert witness will testify and the opinions the expert will offer. 177 Ill. 2d R. 213(g). It is a mistake to introduce the complexities of civil discovery rules into criminal cases. See Weber, 264 Ill. App. 3d at 316, 636 N.E.2d at 906 (\u201cdefendant\u2019s reliance on Supreme Court Rule 220 is misplaced\u201d). The majority\u2019s argument that the doctor\u2019s testimony, the doctor\u2019s calculations, should have been disclosed \u201cunder the spirit of the rule\u201d (343 Ill. App. 3d at 1253) is not persuasive. The best indicator of what was intended by Rule 412 is its language, and that language does not require disclosure of the substance of an expert\u2019s testimony.\nThe fact that the State was aware of what Hindman would testify to before questions were posed to him is irrelevant. Even with respect to exculpatory or mitigating information (where the State has a special obligation), the duty to disclose \u201cmust be viewed in light of the information available to the State when the material is disclosed.\u201d (Emphasis added.) 188 Ill. 2d R. 412, Committee Comments, at lxviii. The duty to disclose is not \u201csubject to continuous updating.\u201d 188 Ill. 2d R. 412, Committee Comments, at lxviii.\nAs the majority points out, because the State may not know if a witness will be called in rebuttal until the defense testimony is heard, the State need not inform the defense of its intention to call a rebuttal witness until that intention is formed. 343 Ill. App. 3d at 1254. That is true even if the State knows who the potential rebuttal witness is and even if the witness has given a written statement. The State need only disclose \u201cpersons whom the State intends to call as witnesses.\u201d 188 Ill. 2d R. 412(a)(i). The State may have been satisfied with its case in chief, including Officer Tandy\u2019s testimony that defendant at the scene had said he had only two beers, until defendant took the stand and repeated that testimony under oath. At that point the State could properly have concluded that defendant was lying, and it needed something more to refute that lie. The State was not required to anticipate that defendant would perjure himself. I also reject the majority\u2019s argument that Dr. Hindman\u2019s testimony did not rebut defendant\u2019s testimony that he had consumed fewer than three beers. Finally; I suggest that IPI Criminal 4th No. 23.30 could have been given even without Dr. Hindman\u2019s testimony. A reasonable jury could conclude that a defendant who has a blood-alcohol level of 0.077 at 5:40 p.m. had a blood-alcohol level greater than 0.08 before 3 p.m. A jury may rely on its common experiences in life, including the fact that the effects of alcohol consumption diminish over a period of hours.", "type": "dissent", "author": "JUSTICE COOK," } ], "attorneys": [ "Donna S. Morrison, of Polinske & Associates, EC., of Edwardsville, for appellant.", "Vince Moreth, State\u2019s Attorney, of Carlinville (Norbert J. Goetten, Robert J. Biderman, and James C. Majors, all of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Eeople." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK E. HOOD, Defendant-Appellant.\nFourth District\nNo. 4\u201403\u20140178\nOpinion filed November 3, 2003.\nDonna S. Morrison, of Polinske & Associates, EC., of Edwardsville, for appellant.\nVince Moreth, State\u2019s Attorney, of Carlinville (Norbert J. Goetten, Robert J. Biderman, and James C. Majors, all of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Eeople." }, "file_name": "1245-01", "first_page_order": 1263, "last_page_order": 1278 }